Archive/File: people/e/eichmann.adolf/transcripts/Sessions/Session-004-03
Last-Modified: 1999/05/28
Among the numerous trials of war criminals the Court will
find, as was already mentioned, in Meyerowitz' book
instances in which the court of one country dealt with
crimes committed against members of another nation. In the
Law Reports of Trials of War Criminals, Vol. 1 page 106, the
following is stated (I am reading from the English
judgment):
"That the appointment of Allied members of the Military
Courts is not compulsory is strikingly demonstrated by
the trial of a British Military Court at Singapore of
W/O Tomono Shimio of the Japanese Army. In that case
the accused was charged, found guilty and sentenced to
death by hanging, by a Court consisting of British
officers only, for having unlawfully killed American
prisoners of war at Saigon, French Indo-China. The
locus delicti commissi was French territory, the
victims were United States nationals."
And so a British Military Court in Singapore tried a
Japanese war criminal for offences which he committed on
French territory against American subjects. What was the
source of the competence of the British Military Court? -
this we find on page 53 of the Hadamar Trial:
"The United States did have a direct interest in
punishing the perpetrators of the offence inasmuch as
the victims were nationals of allies engaged in a
common struggle against a common enemy."
Your Honours, if British or Americans were able to judge
crimes which were not committed in their territories, where
the injured parties were not their nationals, in which they
had no interest other than that the injured parties were
subjects of their Allies - how much more compelling is the
right of an Israeli Court to judge someone who is accused of
the intention of exterminating the Jewish people? For us,
the Jewish people are not simply "Allies" who may today be a
partner and who conceivably tomorrow may no longer be a
member of a military or political alliance, who today is a
partner in war and tomorrow may possibly be an enemy. If
those countries were able to assume to themselves the right
of jurisdiction, on the ground that those who were harmed
were "allies," our moral and legal right to try the person
who sought to wipe out the Jewish people, our own flesh and
blood - is unchallengeable.
Judge Halevi: Perhaps this is the place to mention the
counts regarding Polish citizens, Czechs and other peoples
who were also victims according to the indictment, and who
are also Allies.
Attorney General: Your Honour, we have accused Adolf
Eichmann for those crimes which are known to us. And seeing
that crimes against humanity, in our view, are
exterritorial, we are permitted to try him in Israel for
crimes against Poles, Slovenes and Gypsies in exactly the
same way as a Polish or Czech or Hungarian Court would be
permitted to conduct a trial for crimes committed against
their nationals and against other nationals. When a Polish
Court sentenced Rudolf Ho@67ss, commander of the Auschwitz
camp, it was sentencing a man who had committed crimes while
admittedly on Polish soil but against the nationals of a
dozen countries.
But furthermore, Your Honours, if we do not try him, if the
Court should accept the contention of Defence Counsel,
possibly no other Court may try him. And the unprecedented
crimes, of which he is accused, may possibly go unpunished.
I have already said: There is no country today demanding
Adolf Eichmann's extradition. There is no one claiming for
himself the right of jurisdiction over him. If this Court
were to divest itself of the competence which it possesses,
it will be necessary to release him. If he returned to
Argentina whence he was brought here...
Judge Halevi: I do not know whether he can return to
Argentina. After all, he was there under an assumed name.
Attorney General: Argentina demanded his return at a
particular stage in the negotiations between us and the
Government of Argentina. If we were to return Adolf Eichmann
to Argentina, Ricardo Klement could have come out of hiding,
if he were afraid only of extradition and not of any other
harm to himself, since according to the law of Argentina -
as I shall show the Court forthwith - he was immune against
extradition to any other country at all.
Apart from cases covered by extradition treaties, an
Argentinian Court has decided that it will not extradite a
war criminal after the passage of the period of legal
prescription of 15 years applying to crimes, according to
the Argentinian law. In a case which was heard in Buenos
Aires on 18 July 1960, on the application of the Government
of Czechoslovakia for the extradition of Durcanski, the
Argentinian Court declined to grant the request. And this is
what it said:
"We have to decide in this matter what is the law that
applies and arising therefrom what is the period of
prescription. The Law of Extradition No. 1612 in sub-
section 5 of section 3 provides for the rejection of
the application where according to the laws of
Argentina or of the country making the demand, the
claim is barred by prescription. According to section 2
of the Criminal Code, the law which is more
advantageous to the accused is to be applied. This is
also the traditional principle in most of the
international agreements, as the State Attorney has
pointed out. In the application for extradition no
details were given of the principles relating to
prescription of criminal charges in Czechoslovakia at
the time the deeds attributed to the accused were
committed. In view of this we have to act according to
the Argentinian law. Section 62 of the Criminal Code,
Sub-section 1, lays down that the maximum period for
prescription is 15 years, a period which has long since
passed, from the conclusion of the Second World War on
9 May 1945 until Durcanski's arrest. We therefore have
to conclude that the application for extradition has to
be rejected, seeing that, if the accused cannot be
tried, and it is impossible to judge him in our country
in respect of the acts attributed to him, for reasons
of prescription, it is also impossible to carry out the
extradition in order that he may be tried for these
acts in the requesting country."
I have here a photostatic copy of the Argentinian judgment.
I also have its text, as published in the Argentinian legal
journal Jurisprudencia Argentina. Argentina has the right to
enact such laws. But if it is a fact, as Defence Counsel
said yesterday, that Adolf Eichmann was arrested on 11 May
1960, on that date two days had already elapsed since the
date on which he could have emerged from his place of hiding
as Ricardo Klement and was no longer liable to extradition
to any country whatsoever.
Presiding Judge: Why, in fact does the Argentine Court say
that their period of prescription had long passed, as you
read out?
Attorney General: From 9th May until July is a long time.
On 9 May 1945 the Second World War ended with Germany's
surrender.
Presiding Judge: The application was surely submitted
before then. You are referring to the date of the decision.
Attorney General: The arrest was made...
Presiding Judge: The arrest was on 18 July, wasn't it?
Attorney General: Yes, after the expiry of 15 years.
And in conclusion of this matter, may I be permitted to
submit the certificate of a public official signed by
Ambassador Shabtai Rosenne, legal adviser of the Ministry
for Foreign Affairs, attaching a copy of a Note from the
Embassy of the United States to the Ministry for Foreign
Affairs dated 24 October 1950, the original of which is
retained in the files of the Ministry for Foreign Affairs. I
submit signed copies of this certificate, which contains a
request from the Government of the United States to Israel
to join with her in recognizing the termination of the state
of war with Germany, in view of the developments which had
taken place subsequent to the London meeting in May 1950. In
the second paragraph the American Embassy states:
"Since the Ministers found that it was impossible to
achieve the unification of Germany on a basis which
respects the fundamental liberties, the Governments of
the United States, the United Kingdom and France agreed
to consider the Government of the Federal Republic as
the only German Government freely and legitimately
constituted and therefore entitled to speak for Germany
as the representative of the German people in
international affairs.
"The three Governments have therefore decided, as soon
as action can be taken in all three countries in
accordance with their respective constitutional
requirements, to take the necessary steps in their
domestic legislation to terminate the state of war with
Germany. This action will not affect the rights and
status of the three Powers in Germany, which rest upon
other bases. It will however create a firmer foundation
for the developing structure of peaceful and friendly
relationships and will remove disabilities to which
German nationals are subject. The three Governments
hope that other Governments, including that of Israel
if it sees fit, will find it possible to take similar
action in accordance with their own constitutional
practices at about the same time as the Governments of
the United States, the United Kindgom and France. So
far as can be seen at present this time is likely to be
early in 1951, but in the meantime preparatory measures
will no doubt be necessary in the countries concerned
to bring about the termination of the state of war at
the time mentioned. In the event of it being decided by
the Governments of the Occupying Powers to take earlier
action, the interested Governments will be notified."
The State of Israel was, accordingly, requested to join in
the termination of the state of war with the Federal
Republic, and these three Powers acknowledged the fact that
the State of Israel, despite the fact that it was not in
existence at the time of the declaration of the war nor at
the time when it ended, was a belligerent whose agreement
and collaboration had to be sought for the termination of
the state of hostilities.
In its reply, the Israel Ministry for Foreign Affairs stated
(this appears as Annexure B before you, Your Honours):-
"The Ministry for Foreign Affairs presents its
compliments to the British Legation and has the honour
to refer to the Legation's Note of 24 October 1950
concerning decisions reached by the Foreign Ministers
of the United Kingdom, the United States and France at
their meeting in New York in September last.
The Ministry has particularly noted the decision of the
three Governments to take the necessary steps in their
domestic legislation to terminate the state of war with
Germany, and their affirmation that any action by the
Occupying Powers as is more particularly described in
the said Note in no way prejudices the final peace
settlement.
In the Note the hope was expressed that the Government
of Israel if it saw fit, would find it possible to take
action similar to that decided upon by the Governments
of the United Kingdom, the United States and France,
whose view it was that such action would create a
firmer foundation for the developing structure of
friendly relationships and would remove disabilities to
which German nationals were subject. The Ministry for
Foreign Affairs desires to inform the British Legation
that in the view of the Government of Israel, which has
given the matter its most careful consideration, the
exceptional circumstances of this country do not
warrant action on the lines suggested.
In bringing the above to the notice of the Legation,
the Ministry for Foreign Affairs desires to point out
that the Government of Israel reserves fully its rights
and position in relation to Germany and its claims
against that country."
In Annexure D the Court will find the statement of the
Spokesman of the Ministry for Foreign Affairs of 9 July,
1951:
"More than eighteen years have elapsed since the Nazi
Government came to power and anti-Semitism became a
major object of German policy. For twelve terrible
years Germany pursued that hostile course against the
Jewish people with a ruthless persistence that has no
parallel in any war waged by one people against
another. It spread that vicious creed in every country
which fell under its sway, and in the end sealed that
policy by the slaughter of six million Jews, the bulk
of European Jewry.
"Six years after the end of hostilities the German
people have not yet made any expiation or reparation
for the crimes committed by the Nazis. To this day the
German people had not found it within themselves to
shake off the blood-stained heritage of their erstwhile
masters.
"To this day they have not abjured or solemnly
dissociated themselves from the appalling record of
these twelve years of Nazi rule.
"To this date they continue to enjoy the possession of
property they stole from their Jewish victims before
they sent them to the death chambers.
"To this day, as every new election shows, the evil
doctrines of Nazism are rampant in Germany.
"As long as this state of affairs continues, Germany's
war against the Jewish people cannot be regarded as
having come to an end."
Presiding Judge: I have marked this certificate together
with its annexures as T/5.
Attorney General: But meanwhile something has changed. Ten
years have passed since that declaration of the Ministry for
Foreign Affairs. A Reparations Agreement was signed, an
Israel Mission exists in West Germany, the Federal Republic
has officially abjured the crimes of the Nazis, and the Head
of that country has made declarations which are well known
to all of us. The important thing from the point of view of
this document is that three Western Powers requested Israel
to participate in terminating the state of war with Germany
and in so doing acknowledged by means of an international
document, at least on their part, the special status of
Israel whose consent and legislative enactment were
necessary for the termination of that state of war.
I submit, therefore, in summing up the issue: in regard to
crimes against the Jewish people, the Israel Court is
competent to try the case. It is competent to do so
according to the general doctrines of international law, it
is competent to do so because the victims of these crimes
were victims of this state no less than the victims of
Auschwitz were victims of the State of Poland or the victims
of Bergen_Belsen were the victims of whatever Court tried
those criminals. The absence of the formal establishment of
the State does not make any difference to the subject.
Israeli judges will not be less fair in this trial than if
the State had existed already in 1936 or 1937, as was then
recommended by the Peel Commission. This confusion between
the question of "fair trial" with that of the non-existence
of the State is also not relevant here. The State of Israel
has proved to its inhabitants and to the world that it
possesses a judicial system which is just, and that it
guarantees the rights of defence to an accused person in
conformity with the will of its population and its laws. The
State of Israel is competent, no less than any other State,
to try a man accused of crimes against the Jewish people.
The State of Israel has existed as a political nucleus since
1917, and the historic connection between the Jewish people
and this country has never been severed since the
destruction of the Temple. According to international law
this State is recognized as a Jewish State.
Accordingly I ask the Court to decide that it possesses
competence in respect of these crimes.
Your Honours, you said you wanted to shorten today's
session. I am ready to stop at this point. I believe I shall
not require of you more than one hour on Friday morning.
Presiding Judge: I understand that you need the additional
hour in order to deal with the authorities which Dr.
Servatius has submitted in his written arguments.
Attorney General: That is so, Your Honour. I have already
dealt with some of them, but others still need to be
answered. I shall try to confine my comments to the limits
of one hour.
Presiding Judge: Dr. Servatius, the Court will be ready to
hear a reply from you when the Attorney General has
concluded his argument - a concise reply of course. You
should be ready for this on Friday, after the Attorney
General has finished his remarks.
Dr. Servatius: I think my reply will take about half an
hour.

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